The Sociological Model of Law

There is an adage among lawyers and judges that the two commodities a consumer never wants to watch being made are sausages and justice. Donald Black, University Professor of the Social Sciences at the University of Virginia, disagrees. Professor Black is a sociologist, and he explains much of our legal system's indeterminacy by examining voluminous empirical data. The way the legal system works in practice, he argues, has little to do with formal legal rules. I find Sociological Justice brilliant; it explains and predicts the real-life behavior of judges and juries.

The closer a person gets to the inside of courts, the more terrifying they become. We all stand in jeopardy of being indicted by politically ambitious prosecutors or losing our life's savings to some no-account civil plaintiff. Texaco, for example, lost over six billion dollars to Penzoil in a case that ninety-nine out of a hundred lawyers would have thought frivolous. Because of the way Texas state judges get their jobs, Penzoil's lawyers had the system wired. Professor Black, however, would have taken Penzoil's case seriously.

Unfortunately, we can't give our system more determinacy. As Morris Cohen wrote in the Harvard Law Review early in this century: "We urge our horse down hill and yet put the brake on the wheel—clearly a contradictory process to a logic too proud to learn from experience. But a genuinely...

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